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BENCHBOOK
CONTENTS
Acknowledgement 5
Foreword 6
Sources Of Civil Procedure 6
Preliminary Matters Jurisdiction 6
Publicity Of Proceedings 7
Guidelines For Judges/Magistrates Presiding Over Matters 7
in Which One or More Of The Parties Is Self Represented
2
Amendment 17
Who Can Apply For Amendment? 17
Purpose Of Amendments 17
Principles For the Grant Of Leave To Amend 17
Effect Of Amendment 18
Dismissal Of Suit On Grounds Of Law 18
Payment Into Court 18
Undefended Suits 19
Interlocutory Proceedings 20
Interlocutory And Interim Injunctions 20
Interim Preservation Of Property 21
Order For Detention, Preservation Or Inspection Of Property 21
Proceedings At Trial 21
Attendance At Trial 21
Adjournments 21
The Order Of Giving Evidence 22
Exhibits 23
Evidence Generally 24
Delay And Discontinuance 24
Judgment 25
Civil Appeals 27
Interlocutory Appeals 27
Extension Of Time To Appeal In Civil Cases 28
Costs 28
Security For Costs 28
Power Of Review 28
Probate And Administration 29
A. Probate
B. Letters of administration
C. Letters of administration with will annexed
D. Administration
Probate of a will 31
Letters of administration 33
Persons resident outside the jurisdiction 33
Minors and persons with disability 33
Caveat 34
3
Matrimonial Applications 35
Enforcement Of Custody, Access And Maintenance Orders 35
Receivers And Managers 35
Execution Of Judgement 36
General Principles 37
Modes Of Execution 37
A. Writ of fieri facias
B. Garnishee proceedings
C. Charging order
D. Appointment of a receiver
E. Summons to show cause
F. An order of committal from the high court.
4
ACKNOWLEDGEMENT
Many people and partners assisted in diverse ways to the realization of this
project for the provision of bench books for the District Courts and hand
books for the support staff of the courts.
The Judiciary and the Judicial Service of Ghana singles out the Royal Danish
Embassy and in particular DANIDA, for appreciation, for their invaluable
partnership and support without which these publications would not have
been completed. Their commitment to the advancement and improvement in
justice delivery in Ghana is highly appreciated.
Special thanks and appreciation also go to Her Ladyship, the Chief Justice of
Ghana, the Chairman and Board of Judicial Training Institute (JTI), for their
support and encouragement for the project.
We are also indebted to Her Ladyship Gertrude Torkornoo and Ms. Sandra
Thompson, (Director, Judicial Reforms and Projects) who did the proof
reading; Jacob Soung, Mabel Ahele, Fati Abukari, Hannah Edzii and Sophia
Okine, all staff of JTI for their various contributions to make this a reality.
The Judicial Training Institute (JTI) Ghana, deserves our highest
commendation and appreciation for their professional role in ably
coordinating the drafting of all the manuals for the Civil Procedure, Criminal
Procedure, Juvenile Court and Family Tribunal bench books.
Special thanks to the Ag. Director of Judicial Training Institute (JTI), Justice of
the Court of Appeal, Justice J. B. Akamba, for the leadership role he played in
the development of the manual and for his tireless effort to see this project to
a successful end.
5
FOREWORD
As part of the efforts to make justice delivery more efficient, the Judicial
Training Institute (JTI) on behalf of the Judiciary and the Judicial Service of
Ghana has developed this bench book as a guide to District Magistrates in the
performance of their judicial duties.
The effort to produce a guide of this kind underscores the fact that the work
of a District Magistrate comprises a significant portion of the work load of our
courts.
We are mindful of the fact that the bench book may not embody all the
essential guidelines covering all areas critical to the functions of the District
Court. We remain convinced however, that it will serve as a beneficial starting
point and a basis for standardizing practice in the operations of courtroom
work in our District Courts.
We hope that all Magistrates will diligently study and apply the guidelines
contained therein alongside the new District Court rules as well as other
relevant legislations and regulations such as the Juvenile Justice Act and
Practice Directions.
We trust that this benchbook will serve the District Court very well.
Ag. Director,
Judicial Training Institute (JTI)
May, 2011
Accra
6
SOURCES OF CIVIL PROCEDURE
The main sources for the procedure to be followed in civil cases by the District
Courts are the following:
Practice Directions do not have the force of law and in case of conflict,
statute must prevail. They cannot supercede the first four mentioned sources,
notwithstanding the fact that they may come from the Chief Justice or the
proper authority.
PRELIMINARY MATTERS
JURISDICTION
The Courts Act (1993), Act 459, section 47(1) grants the District Court civil
jurisdiction in the following cases:-
a. All personal actions arising under contract or tort for the recovery
of any liquidated sum not exceeding five thousand Ghana cedis (Gh¢
5000.00).
b. Injunction or orders to stay waste and preserve property, restrain
breaches of contract or the commission of any tort.
c. Claims for relief by interpleader
d. Matters relating to landlord and tenant
e. Actions relating to ownership, possession or occupation of land with
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value not exceeding five thousand Ghana cedis (Gh¢ 5000.00).
f. Divorce and other matrimonial causes, paternity and custody of
children.
g. Application for grant of probate or letters of administration.
h. Charges and matters affecting juveniles (i.e. under 18 years).
i. Matters relating to maintenance of children (when sitting as a Family
Tribunal)
The CI 59 provides guidance for the operations of the district court and is to be
interpreted to:
PUBLICITY OF PROCEEDINGS
All proceedings of the court shall be in public except otherwise prescribed
by law. Reasons shall be stated in the record book where for any reason
proceedings are to be held in camera.
REPRESENTATION
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which he or she has to cross examine the witnesses.
3. A judge/magistrate should explain to the litigant in person any
procedures relevant to the litigation.
4. A judge/magistrate should generally assist the litigant in person by
taking basic information from witnesses called, such as name, address
and occupation.
5. If a change in the normal procedure is requested by the other parties
such as the calling of witnesses out of turn the judge/magistrate may,
if he/she considers that there is any serious possibility of such a change
causing any injustice to a litigant in person, explain to unrepresented
party the effect and perhaps the undesirability of the interposition of
witnesses and his or her right to object to that course.
6. A judge/magistrate may provide general advice to a litigant in person
that he or she has the right to object to inadmissible evidence, and to
inquire whether he or she so objects. A Judge is not obliged to provide
advice on each occasion that particular question or documents arise.
7. If a question is asked, or evidence is sought to be tendered in respect of
which the litigant in person has a possible claim of privilege, to inform
the litigant of his or her rights.
8. A judge/magistrate should attempt to clarify the substance of the
submissions of the litigant in person, especially in cases where, because
of garrulous or misconceived advocacy, the substantive issues are either
ignored, given little attention or obfuscated- (Neil v Nott (1994) 121
ALR 148 at 150).
9. Where the interests of justice and the circumstances of the case requires
it, a judge/magistrate may:
• Draw attention to the law applied by the court in determining
issues before it.
• Question witnesses;
• Identify applications or submissions which ought to be put to the
court;
• Suggest procedural steps that may be taken by a party;
• Clarify the particulars of the orders sought by a litigant in person
or the bases for such orders.
• Source: Diana Bryant, Chief Justice – Family Court of Australia
9
COMMENCEMENT OF PROCEEDINGS
The CI 59 provides in its first schedule forms for use to commence proceeding.
These forms may be varied where necessary. Where there is none, the registrar
is authorized by the court to design a suitable one for use.
Where the person does not sue in his personal capacity, the capacity in
which he sues is usually endorsed on the writ. e.g. actions by trustees
and representative. Where a person is given a power of attorney, the
action should be in the name of the donor. The practice has been to
state that the person sues per his lawful attorney. Failure to so state this
on the writ does not offend the rules. What is important is the tendering
of the power of attorney during the trial.
b) Petition
In the District Court proceedings for divorce, child custody, paternity
and maintenance are commenced by filling the appropriate forms in the
Second Schedule. In a divorce case, the parties are referred to as the
petitioner and respondent.
PARTICULARS OF CLAIM
1. The plaintiff must state his or her claim briefly in the writ of summons
and deliver same to the registrar. The particulars of the plaintiff’s
demand must give the defendant sufficient information on the details
of the claim.
2. The plaintiff shall deliver to the registrar as many copies of the
particulars as there are defendants.
3. An illiterate plaintiff shall procure an agent to reduce his particulars or
narrative into writing.
4. Form 1 of the first schedule shall, where appropriate, be used for the
written narrative to furnish the particulars which shall be signed by the
plaintiff or his agent.
5. (See Order 3 of CI 59)
10
JUDGMENT NOT TO EXCEED CLAIM
The court shall not give judgment in excess of the sum claimed unless the
particulars are amended to accord with the evidence led.
11
SERVICE OF PROCESS
The purpose of service is to give notice to the other party of proceedings
against him. Failure to serve is a fundamental defect and can lead to orders
of the court being set aside as a nullity. Using the required mode of service is
also important. Service is by the bailiff, other officer of the court or a person
authorized to do so by the court.
i) Time
Unless otherwise directed by the court, service of processes may be
made at a reasonable time usually between 6 a.m. to 6 p.m. on any day
with the exception of weekends and public holidays.
ii) Modes
• Personal
Service shall be personal unless otherwise provided by the rules.
• Service other than personal
• Substituted Service
This is the most frequently used form of non personal service. A party
may seek leave of court for substituted service with or without an
attempt at personal service having been made. The court may direct
substituted service if satisfied that the circumstances so warrant.
It is effected in any manner the court may direct, such as newspaper
publication, posting of the subject matter of the dispute on the notice
board of the court or leaving the process with an adult at the last known
place of abode of the party or in other manner the court may direct.
12
• Proof of service
Service must always be proved by the bailiff or other officer of the court
in a manner provided by the rules. An affidavit of service on production
is prima facie evidence of service. [See Order 4 rule 6 (2) of CI 59]
TRANSFER
a. Transfers may be effected when:
i. The defendant objects to the jurisdiction before or at the time
the plaintiff’s case commences.
ii. The court reports to a supervising judge of the High Court and
the supervising judge orders the transfer.
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b. In case of two actions on the same subject matter with substantially the
same parties pending in two different districts, the supervising judge
shall on being informed decide the venue;
c. In the following cases the magistrate may despite objections to
jurisdiction, assume jurisdiction for good reasons stated:-
• Action for maintenance
• Child custody
• Paternity or other matrimonial cause
• Adoption
PARTIES
Parties in litigation are usually referred to as the plaintiff and defendant. The
plaintiff must be clothed with capacity at the time the writ is issued. Capacity
relates to the legal ability of the individual or entity to sue or be brought to
court. (See Black’s Law Dictionary 6th Edition, pg. 207). However, the plaintiff
may sue or the defendant may be sued in a representative capacity.
a. Contract
The parties to the contract as are gleaned from the terms of the contract
b. Tort
The person who alleges that a tort has been committed against him or
the person in possession of the land on which the alleged tort took place
is the proper plaintiff.
d. Declaration of a right
The parties who seek a formal pronouncement (declaration) or
interpretation that they have a right or an interest in the subject matter
without seeking enforcement
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e. Suits by infants and the mentally challenged
These are instituted by the next friend as plaintiff or defended by a
guardian ad litem as defendant.
a. 3rd Party Proceedings
A defendant who claims that upon judgment being given against him
he is entitled to be indemnified or entitled to contribution from a third
party may join such a person as a third party.
Non joinder or misjoinder is not fatal to a case. The Court can order the joinder
of a necessary party or strike out a person improperly joined at any stage of the
proceedings either suo motu or upon application. (The discretion to strike out
****** should be exercised sparingly).
• Where the plaintiffs sue jointly or the defendants are jointly sued, the
death of one of them will not affect the proceedings. The cause of action
will survive.
• Where a sole plaintiff dies and a legal representative does not apply to
be substituted, within a reasonable time, the court may upon application
by the defendant order the legal representative to be joined or order the
suit struck out with costs. All proceedings prior to the substitution remain
valid.
15
ATTENDANCE OF PARTIES
Parties may be permitted to appear by proxy where the court is satisfied
with the authority of the proxy. A party, his solicitor or agent may do any act
specified by the rules. (See Order 11).
Upon his arrest, if the defendant fails to show cause, the court may order the
defendant to provide good and sufficient security or bail for the satisfaction
of any judgment that may be given against the defendant in the action. Failing
this, the court can commit him into custody for a maximum of 21 days during
which the matter should be heard. The plaintiff pays for the upkeep of the
defendant in advance to the prison authorities. Failure to do this will lead to his
release. The court must guard against being misused by the plaintiff to ‘teach
the defendant a lesson’. It is always prudent to order that when the defendant
is arrested and the courts have closed for the day, he should be taken to the
nearest Police Station for him to be bailed. However, the case of THE REPUBLIC
V. HIGH COURT (FAST TRACK DIVISION), ACCRA, EX PARTE P.P.E. LTD and
PAUL JURK (UNIQUE TRUST FINANCIAL SERVICES LTD) INTERESTED PARTY
(2007 - 2008) SCGLR 188 has clearly determined that no person ought to be
imprisoned for non-payment of ajudgment debt and this casts doubts on the
continuous use of the imprisonment aspect of the above procedure. (See Order
12 of CI 59)
The registrar can be ordered to assist illiterate parties who are not represented
by Counsel to reduce their claim into writing. The magistrate has to verify the
content of the written statement. Written statements are to state concisely all
material facts to be relied on by the party. They must contain the relief sought,
deny specific allegations, and set up specific defences such as fraud.
Set off or counterclaims are to be pleaded (stated). [(See the case of Hanna
Assi (No. 2) vrs. Gihoc Refrigeration and Household Products Ltd. (2007-2008)
SCGLR 16]
All this notwithstanding the defendant may lead evidence to dispute a claim
or support a defence not stated in a written statement unless the court is
of the opinion that such evidence ought to have been specifically pleaded, is
inconsistent with the defence filed, will take the plaintiff by surprise or raise
new issues.
17
AMENDMENT
Trials in the district court being summary, pleadings are usually not filed so
the need to amend does not arise. However, when the court orders written
statements the need to apply for leave to amend may arise. (See Order 19 of
CI 59)
PURPOSE OF AMENDMENTS
The purpose as with all other functions of the court is to do justice by
eliminating statements that tend to prejudice, embarrass, or delay the fair trial
of the action and ensure that the real issue in controversy between the parties
is determined.
18
• Injustice to the respondent cannot be compensated by costs
• The amendment sought is immaterial i.e. not essential for the
determination of the matter in controversy
• Fraud is being introduced at a late stage
EFFECT OF AMENDMENT
It takes effect not from the date it is made but the date of the original written
statement. The original pleadings as they stood no longer determine the issues
between the parties. For example, where an amended written statement
of defence leaves out a counterclaim in the original pleading statement of
denfence, it will be deemed to have been abandoned.
19
• If the action was for libel or slander, the court may permit the plaintiff
to make a statement in open court in terms approved by the court.
• A failure of the plaintiff to accept the money is to be construed as a
claim for indebtedness which is greater than the sum paid into court. In
such a case, the court in determining the suit should consider the fact of
the payment into court and its refusal, in awarding costs.
• In respect of estate matters, a person who desires to make payment or
deposit anything in court may do so upon notice to all persons affected
by the proceedings.
The defendant may also tender the sum of money claimed in debt or damages
personally to the plaintiff.
• If the plaintiff refuses to accept the sum, the defendant may put up a
defence of tender before trial, by paying the sum of money tendered
into court. [See Order 17 (1) (4) of CI 59]
• If this defence is not pleaded, the fact that money has been paid into
court is not to be inserted in the pleadings nor that fact made known
to the court at the trial until the question of liability and amount of the
debt or damages has been decided. – [See Order 17 Rule (2) of CI 59]
UNDEFENDED SUITS
Placing of a suit on the Undefended List is the court’s prerogative
• Procedure
A plaintiff who wishes to place a suit on this list has to attach to the writ an
affidavit and all supporting documents to the claim with the affidavit stating
the plaintiff’s belief that the defendant has no defence to the action. If satisfied
by these, the court then places it on the undefended list.
Upon service, a defendant who has partial or a full defence to the action shall
at least five days to the hearing file an affidavit with supporting documents
setting out the said defence.
Where the court is satisfied either by affidavit evidence or oral evidence on oath
that the defendant indeed has a defence, it shall cause the suit to be entered on
the general list for hearing. If not so satisfied, the court shall proceed to give
judgment for the plaintiff either wholly or in part without a trial.
The situation is the same where one defendant has a good defence and the
other does not.
20
The Court may require oral evidence from the Plaintiff if it deems it fit
notwithstanding the fact that a suit is on the undefended list. This is necessary
where claims for damages have to be proved. (See Order 8 of CI 59)
INTERLOCUTORY PROCEEDINGS
Interlocutory Applications
General Principles
• Made in the course of pending proceedings
• There must be a substantive action pending
• Reliefs sought must be within ambit of the substantive case
• They terminate with the conclusion of the case or appeal
• Should not be used to prejudge substantive suit.
• Usually determined by affidavit evidence but oral evidence imperative
where there is a conflict on material facts deposed to by the parties on
a crucial issue in the affidavits
• The application is made on notice unless otherwise stated by the rules
or in the case of a real emergency.
• When made ex-parte, it must be repeated within 10 days on notice
failing which it lapses. (See Order 13 rule 7 of CI 59)
21
INTERIM PRESERVATION OF PROPERTY
Sale of Perishable Goods
The court may after making such an order upon an application on notice to
prevent spoilage order that the money realized from sales be paid into Court
to preserve its value in monetary terms. Unless both parties agree, it is always
prudent to let an independent person conduct the sale.
PROCEEDINGS AT TRIAL
This order deals with attendance of the parties at the trial, adjournments, the
order of giving evidence and exhibits.
ATTENDANCE AT TRIAL
• If an action is called for trial and all the parties are absent, the action
may be struck off the trial list.
• If the plaintiff attends but the defendant does not, the defendant’s
counterclaim if any, may be dismissed and the plaintiff allowed to prove
the claim.
• If the defendant attends but the plaintiff is absent, plaintiff’s claim may
be dismissed and the defendant allowed to prove the counterclaim if
any.
• It is to be noted that any such judgment given in the absence of a
party may be set aside or varied on an application brought within 14
(Fourteen) days after the trial. [See Order 25 Rule (1) & (2) of CI 59]
ADJOURNMENTS
Adjournments are at the discretion of the court. However, in exercising that
discretion the court must have in mind the keynote objective of the rules as
stated in Order 1 rule 1(2) of CI 59. The rule provides that the rules of procedure
are to be interpreted and applied in a manner that helps to achieve speedy and
effective justice, avoid delays and unnecessary expense, ensure that as far as
possible, all matters in dispute between the parties are completely, effectively
and finally determined, and to avoid multiplicity of proceedings.
22
It is also to be noted that under the audi alteram partem rule of natural justice,
no man is to be condemned unheard. Therefore, if a party has not had notice
of trial, the trial must be adjourned in order that notice is served on the party.
The rules and principles relating to attendance at trial and adjournment if
strictly employed by magistrates will ensure effective case management.
Lawyers must not be allowed to dictate the pace of trials. Adjournments must
be strictly regulated and granted only when the court considers it necessary in
the interest of justice. The powers given to a magistrate in Order 25 rule 1 (1) to
strike the action off the trial list or to dismiss for failure to attend court must
be exercised to forestall unnecessary requests for adjournments. (See order 25
of CI 59 )
Relevant Authorities:
Lagudah vs. Ghana Commercial Bank (2005-2006) SCGLR 388 at 394
Rep. vs. High Court, (Fast Track Division) ex-parte State Housing Co. Ltd (No. 2)
(2009) SCGLR 185 at 190)
Rep. vs. High Court ex-parte Sian Goldfields Ltd (2009) SCGLR 204
Case and time management entails that the magistrate organizes his time
table, the number of cases set down for hearing, have stale cases which clog
his cause list removed, not devote too much time to one case at the expense
of others, not allow lawyers to play to the gallery, and any other action that
ensures an efficient use of his court time.
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i. The plaintiff may cross-examine the defendant.
j. The defendant may be re-examined
k. The defendant may also call witnesses who may be cross examined and
re-examined.
l. The defendant closes his case
m. Where there are two or more defendants who appear separately or are
separately represented, they and their witnesses also take their turn to
adduce evidence if they elect to do so.
n. If the parties are not represented by lawyers then the court adjourns the
case to a date for judgment.
o. If the parties are represented by lawyers, their lawyers may address the
court before judgment is given.
p. The order for addresses is as follows:
• If the defendant calls no evidence then the plaintiff addresses first.
• If the defendant calls evidence, then he loses the right to have the last
word.
His lawyer has to address the court first, and the plaintiff (or the party who
begun) has the last word.
Under order 25 rule 5 of CI 59, the above order of proceedings may be varied
by the court as necessary where pleadings have not been filed, or the parties
or either of them is not capable of understanding the effect of the written
pleading. The court may in such a situation, hear the defendant’s statement
of defence immediately after the plaintiff’s statement of claim before any
witnesses are examined.
EXHIBITS
Exhibits may be tendered by the parties themselves, by their witnesses or
through their opponents.
When exhibits are admitted in evidence, the court clerk takes charge of them
and marks or labels each exhibit with a letter or a number.
An exhibit tendered at trial is not to be given out to any of the parties or taken
out of the registry, except by order of the court but shall be kept at the registry
of the trial court until the time limited for appeal has expired.
Where an appeal is lodged, the exhibits are forwarded to the High Court
together with the record of proceedings. Usually, the plaintiff’s exhibits are
marked with the alphabet and the defendant’s with numerals. Rejected exhibits
are marked ‘R’ and exhibits tendered by court witnesses are marked ‘CW’. (See
Order 25 rule 7 & 8 of CI 59)
24
EVIDENCE GENERALLY
The Evidence Act, 1975 (NRCD 323) is the primary relevant enactment which
provides for the general rules of evidence and other matters relating to the
giving of evidence in courts.
1. A party who wishes to proceed where six months has elapsed since the
last step was taken, must give to every other party 28 days notice of
intention to proceed.
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2. Where no step has been taken in the matter for 12 months, the court
may strike out a matter on application by the Registrar after 14 days
notice to the parties.
3. Upon an application by a party, the court shall strike out the action as
discontinued subject to the award of costs.
4. Discontinuance means that the entire claim is abandoned, and a
withdrawal means the termination of a part of the claim.
5. Discontinuance or a withdrawal does not abate a counterclaim.
6. Discontinuance or a withdrawal is not a defence to a subsequent action
7. Where a party who has discontinued or withdrawn a case subsequently
brings an action for the same or substantially the same cause of action,
that action may upon application be stayed until costs awarded in the
discontinued action are paid. (see Order 27 of CI 59)
JUDGMENT
Generally, all decisions and judgments of the court shall be delivered in open
court, except for stated reasons.
26
with notice to attend, whether they in fact attend or not. [see Order 28
rule 3 of CI 59]
d. The court has a duty to deliver judgment as soon as possible after the
close of each case, but in any event, the rules require judgment to be
delivered not later than four weeks after the close of the case. [see
Order 28 rule 1 (2) of CI 59]
If judgment is not delivered within the four week period, then the
magistrate must inform the Chief Justice in writing within seven days
after its expiration, stating reasons for the delay and the date on which
the court proposes to deliver the judgment.
Note that a party to the suit may also notify the Chief Justice if judgment
is not delivered within the period of four weeks, and request a date to be
fixed for the delivery of judgment.
The Chief Justice on the receipt of a notice may fix a date for the delivery
of judgment, and the court must ensure that judgment is delivered on
that date.
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rate. Generally, each judgment debt shall bear interest at the statutory
interest rate from the date of delivery of the judgment up to the date
of final payment, unless the transaction which results in the judgment
debt was by an agreement which specified the rate of interest and the
particular manner in which it was to be calculated.
j. When the losing party is served with the Decree or order to pay money
or do any other act, it is to be obeyed without further demand. If a
time for performance is not specified, the person is bound to obey it
immediately unless he applies, and the court enlarges the time by a
subsequent order.
k. The court may at the time of giving judgment, or at any time afterwards,
for sufficient reason, order that the payment of money be made by
instalment, with interest.
l. Magistrates must however ascertain that they have the necessary
jurisdiction to make this order if the application is brought subsequent
to the delivery of the judgment. The general rule is that a trial court
becomes functus officio when there is a pending appeal to an appellate
court.
m. Where payment by instalment is ordered, there can be no execution
until after a default. It is also to be noted that where there is a default,
execution cannot be levied for the whole sum unless the order was
subject to “a default clause” and upon notice to the court. (See Order
28 of CI 59)
CIVIL APPEALS
A party aggrieved by a judgment of a District Court in a civil case may appeal to
the High Court – See s.21 (2) of Act 459 as amended by Act 620.
An appeal against a substantive decision which is as of right must be filed
within three (3) months from the day the final decision was delivered. – See
Order 51 rule 3(1) of CI 47.
INTERLOCUTORY APPEALS
Appeals against interlocutory orders or decisions of the District Court lie to the
High Court with the leave of the trial court or the High Court - See s. 21(2) of
Act 459 as amended by Act 620.
Interlocutory appeals should be filed within fourteen (14) days of the order –
See Order 51 rule 3(2) of CI 47.
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Where the District Court refuses leave, and special leave is sought to appeal to
the High Court, the special leave must be filed within fourteen (14) days from
the date the District Court refused to grant the leave to appeal – See Order 51
rule 3(3) of CI 47.
COSTS
Costs are at the discretion of the court and may be awarded to the successful
party after the event. Notwithstanding the above, the court may order the
successful party to pay the costs of a particular proceeding. (See Order 7 of CI
59)
POWER OF REVIEW
Within 14 days after the delivery of a judgment, a party may apply by motion
on notice for a review of that judgment.
29
on account of an error apparent on the face of the record.
• An application for review does not operate as a stay of execution unless
the court so orders. An order that the application is to operate as a stay
of execution may be made on terms such as the provision of security for
satisfaction or performance of the judgment.
• Any monies paid into court in the action are to be retained until the
motion for review is determined. A magistrate may in the review open
and hear the case wholly or in part and take fresh evidence, reverse, vary
or confirm the previous judgment or decision.
PROBATE AND ADMINISTRATION
Jurisdiction
The district court has power to deal with applications for probate or letters of
administration within its jurisdiction.
Section 47(1) (g) of the Courts Act 1993, Act 459 states that;
“in an application for the grant of probate or letters of administration
in respect of the estate of a deceased person, and in [causes and
matters] relating to succession to property of a deceased person,
who had at the time of death a fixed place of abode within the area
of jurisdiction of the District Court and the value of the estate or
property in question does not exceed ten million cedis;”
The district court also has jurisdiction to grant probate or letters of
administration where the deceased has property, whether movable or
immovable located in its area of jurisdiction.
Where the deceased has property within the jurisdiction of more than one
court, the application for probate or letters of administration shall be made
to only one of the courts in respect of all the properties, but notice has to
be given to the registrar of every court which has jurisdiction over the area
where property of the deceased is located. The district court cannot apply the
Administration of Estates Act. The only legislation they can apply in this regard
is C.1. 59.
A. Probate
A PROBATE is a document issued under the seal of the court as official evidence
of the authority of an executor of the will of a deceased. Where the validity
of the will is disputed, probate is granted only after the court has pronounced
in favour of the executors in “solemn form”. A person who claims to have an
interest in the estate of the deceased may request proof of the will in solemn
form, or the executors themselves may if they consider it necessary commence
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an action by writ asking the court to pronounce the will valid and admitted to
probate. [Order 31 rule 26 of CI 59]
Instead of the interested party requesting the will to be proved in solemn form,
he may issue a writ against the executor for a declaration that the will is invalid.
• When the will appears regular on the face of it and there is no dispute as
to its validity, probate is granted in “common form” [Rule 25 of CI 59]
• The court may on its own motion or on application of a person who has
an interest in the will give notice to the executors named in the will to
come and prove the will or renounce probate [See Rule 7 of CI 59]
• A person who is not the executor of a will but takes possession or
deals with the property of the deceased, or an executor who takes
possession of, and administers or deals with any part of the property
of the deceased and does not apply for probate within three (3) months
commits the offence of “intermeddling with property” [See Rules 3 and
4 of CI 59]
B. Letters Of Administration
Where the deceased died intestate, the proper application for authority to deal
with the estate is by Letters of Administration. The Intestate Succession Act,
1985 (PNDCL 111) has codified the persons entitled to a share of the estate of
the deceased intestate.
The number of persons to whom a grant may be made is not to exceed four (4)
unless any relevant enactment provides otherwise.
The person to whom administration is granted has to execute a bond as set out
in Forms 34 of the First schedule.
If a person who has not been appointed by the court to administer the estate
of the deceased takes possession of or deals with the property, that person is
subject to the same obligation and liability as an administrator and commits
the offence of “intermeddling with property”.
The named executors in the will of a deceased are entitled to grant of probate.
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However when the executors renounce or fail to take probate or pre-decease
the testator, any person interested in the estate of the deceased may apply for
letters of administration with will annexed.
D. Administration
The person to whom administration is granted has to execute a bond as set out
in Forms 35 of the First schedule.
Administrative and similar actions are dealt with under rules 44, 45 and 46
of Order 31 of C I 59. The court may make an order for the full administration
of the estate of the deceased person or for the execution of a trust or give
directions as to the manner in which the estate shall be administered or the
trust executed.
THE PROCEDURE FOR APPLICATION for probate in common form and letters
of administration with or without will annexed are the same. It is by motion
ex-parte supported by an affidavit sworn to by the applicants.
PROBATE OF A WILL
a. The original will (which must have been deposited in the High
Court) is to be inspected to find out whether it appears to
have been signed by the testator or by some other person in
the testator’s presence and at the testator’s direction, and
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whether it has been subscribed by two (2) witnesses. If the will
is properly signed and subscribed, then the attestation clause,
if any, is examined to see if the will was executed in accordance
with the Wills Act 1971, (Act 360). The will is also inspected for
interlineations, alterations, erasures and obliterations as these
are invalid unless they are made valid by the re-execution of the
will or by the subsequent execution of a codicil.
b. An affidavit of one of the subscribing witnesses in proof of the due
execution of the will. This affidavit verifying the signature of the
deceased is important especially where there is no attestation
clause or the attestation clause is insufficient.
c. A declaration of values of movable and immovable properties of
the deceased as set out in Form 22 of the First Schedule.
d. Oath of execution by the executors
e. Death certificate or a burial permit or certified copy thereof.
It is important to note that probate is not to be granted if the will was not
properly signed and subscribed, that is, executed in accordance with the Wills
Act, 1971, Act 360.
Where both subscribing witnesses are dead, the affidavit of another person
who was present at the execution of the will shall be accepted, or the court
may require proof of the handwriting of the deceased and the subscribing
witnesses. {See Order 31 Rule 18 (4)(5) of CI 59}
The court may also require the production of any document referred to in the
will to ascertain whether it is a constituent part of the will. [See Order 31 Rule
21 of C I 59]
Where it is necessary for the preservation of the estate, the court may make a
grant pendente lite, that is, before those entitled to a grant of probate apply.
The application may be made ex parte by a creditor or a person who has an
interest in the estate.[ Order 31 Rules 56 and 57 of CI 59]
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LETTERS OF ADMINISTRATION
Documents required to be filed with the application for letters of administration
are:
a. Oath of administrators [not with Will annexed]
b. Declaration of values of movable and immovable property of the
intestate as set out in Form 22 of the First Schedule.
c. Death certificate or a burial permit or certified copy thereof.
d. Where it is required, an affidavit of the head of family deposing to the
appointment of the customary successor
The court may also require evidence of the identity of the applicants.
When the application is granted, notice as set out in Form 23 in the First
Schedule is required to be posted for a minimum of twenty-one days, or any
other period ordered by the court before the letters of administration are
issued. The notices are posted in the court where the application was made, in
any public place within the jurisdiction and at the last known place of abode of
the deceased. All persons entitled to a share of the estate of a deceased under
the Intestate Succession Law, 1985 (PNDCL 111) must whenever practical, or if
expedient, also be given notice. [See Order 31Rrule 10 CI 59]
The grant may be made for that disabled person’s use to a person the court
considers fit or to the attorney of a person serving imprisonment for his use
and benefit.
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CAVEAT
A caveat is a notice filed by a person who claims to have an interest in the estate
of the deceased intended to prevent the grant of letters of administration
or probate without notice to him. It may be filed either before or after an
application has been made. It remains in force for three (3) months from the
date filed but may be renewed.
A caveat must be brought to the notice of the court by the registrar. The court
shall then direct the registrar to bring it to the notice of the applicant and shall
decline to take any further steps until the applicant ‘warns’ the caveator as
set out in Form 26, to file an affidavit stating the nature and particulars of the
caveator’s interest in the estate of the deceased.
If the warning is not obeyed, the applicant moves the court in respect of his
application. The court may however direct notice to be served on the caveator.
If the warning is obeyed, a copy of the caveators affidavit is served on the
applicant. The applicant then moves the court for the grant of the probate or
letters of administration.
The parties may agree at the hearing as to the persons to whom the grant shall
be made. If they come to agreement, the court removes the caveat from the
file. If they fail to come to agreement, the court may summarily determine
who is entitled to the grant or if necessary order the applicant to issue a writ
against the caveator to determine who is entitled to grant of probate or letters
of administration.
Where grant of probate or letters of administration has been made, a writ for
the revocation of a grant shall not be issued unless a notice to bring in the
grant is given. That is, notice must be served on the person to whom probate or
letters of administration has been granted requiring him to lodge the probate
or letters of administration at the Registry of the court. (See Rules 29, 33, and
37 of CI 59)
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A judgment in default of appearance or in default of pleadings is not to be given
in a probate action. Unless the court strikes out the action, the party who is not
in default may apply to the court for leave to set down the action for trial after
the expiration of the period fixed for the filing of the pleading.
A probate action can only be discontinued with leave of the court. [See Order
31 Rule 11 of CI 59]
MATRIMONIAL APPLICATIONS
1. Jurisdiction:
The District Court has jurisdiction to deal with the following;
a. Divorce
b. Paternity
c. Custody of children;
d. Other matrimonial causes
e. Parentage
f. Custody
g. Access
h. Maintenance
i. Adoption [see Sections 47 (1) & 47 (2) of the Courts Act 459 as amended
by Section 35 of the Children’s Act, 1998 (Act 560)]
2. The appropriate forms for commencing these proceedings are specified
in the second schedule to the rules.
i. The proceedings in the Family Tribunal shall be conducted in
chambers.
3. The action is set down for trial within 14 (Fourteen) days after service
on the defendant. Where the defendant fails to respond within 14
(Fourteen) days after service of defendant’s form on the plaintiff, the
court may make any order(s) in the interest of justice whether asked for
or not. [See Order 32 Rule 5 (1) of C I 59]
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RECEIVERS AND MANAGERS
a. A receiver is appointed to receive rent, income or other benefits from
the property in dispute. Unless he is also appointed a manager, a
receiver has no power to manage the property. The receiver has to open
a deposit account specifically for the receivership into which payment
of income or receipts shall be made.
• The court must direct the intervals or dates on which the receiver
is to submit his accounts to the court for auditing.
EXECUTION OF JUDGEMENTS
This is a process by which a judgment (other than a declaratory one or one for
which there has been voluntary compliance) is enforced according to law. It
is usually against the property or person of the judgment debtor. Execution is
done by means of the various writs of execution or by orders of the court. (See
Order 21 of CI 59)
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GENERAL PRINCIPLES
i. Parties to execution are usually the judgment creditor and judgment
debtor although a person in whose favour an order is made is entitled to
enforce obedience through the process of execution. Again by leave of
court, execution may issue on behalf of a person not party to the suit. A
judgment which is made conditional on the doing of some act cannot be
executed if that act has not been done. Failure to do the act in the time
given will amount to an abandonment of the benefit of the judgment
unless the court otherwise directs.
ii. Time within which execution is to be levied is determined by the rules
although usually an order in a judgment should be complied with
without a demand to do so.
iii. A Judgment is to be enforced by the court which gave the original
judgment even when the final order comes from an appellate court.
iv. Except in cases where a judgment creditor has to seek the leave of the
court, the usual practice is to apply for the appropriate process from the
registrar.
v. A wrongful execution is not necessarily void. It depends on the
circumstances.
vi. The judgment creditor is usually liable for any wrongful or irregular acts
done on his behalf by the bailiff.
MODES OF EXECUTION
This is usually determined by the nature of the judgment and properties of the
judgment debtor available.
• Appointment of a Receiver
This appointment may be made by interlocutory order of the court and may
be applied for whether or not it was included in the writ or particulars of claim.
The registrar shall not manage the property unless the court appoints him as a
receiver or a manager.
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ENFORCEMENT OF JUDGMENT FOR DELIVERY OF
GOODS
• Writ of delivery and
• Writ of specific delivery
They are addressed to the sheriff ordering him to seize the goods in question
forthwith and deliver same to the judgment creditor. The writ may be for the
recovery of the goods or their assessed value or may be for the delivery of
specific goods simpliciter with leave of the court.
• An order for the act to be done in the stead of and at the expense of the
disobedient party
The party who obtains the judgment or a person appointed by the court may
enforce a court order (at the expense of the disobedient party) if the latter fails
to do so.
The registrar by order of court may execute a deed in the stead of a disobedient
party. The deed will have the same validity as though it had been executed by
the said disobedient party. He is also liable for contempt of court. (See Order
21 Rule 6 & 7 of CI 59)
(iii) Where a person is obstructed from carrying out the execution process
he (the disobedient party) could be charged for obstruction of execution of a
duty contrary to Section 222 (b) of Act 29. The charge arises from the use of
violence with intent to deter a person from acting in execution of a duty as an
agent of a court (such as bailiff or auctioneer) from executing his duties in any
official capacity. See also section 110 of Act 459 which defines who is an agent
or officer of the court for the purpose of execution.
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INTERPLEADER PROCEEDINGS
There are two types of Interpleader proceedings-Stakeholder’s and
Sheriff’s.
Stakeholder’s Interpleader.
A person in possession of property or money, (the applicant) in which he has no
personal interest but which is being claimed by rival claimants and expecting
to be sued by them( the claimants) can issue interpleader proceedings by which
the rival claimants are summoned to court for the ownership of the property
to be determined as between them. The claims must be for the same property
or money.
SHERIFF’S INTERPLEADER
When the sheriff seizes property in the course of execution and another person
lays claim to them saying it does not belong to the judgment debtor, and the
judgment creditor disputes the claim, the sheriff commences interpleader
proceedings to determine who has a right to the goods. The interest by the
claimant may not be one of ownership. It may for instance be a claim by a Bank
that it has a charge over the goods.
A claimant who fails to hadhere to the above indicated steps will be deemed
to have abandoned the claim unless granted an extension of time by the court
and he and those who claim through him can be forever barred against the
applicant.
Upon appearance in court, the court may summarily decide the issue between
them if it is one of law or if they both consent or one of them so requests. In
the alternative, the court may have the issue between the parties stated and
decide who is to be plaintiff and defendant and have the issue tried. (See Order
14 of CI 59)
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TIME
Time fixed by the rules, judgment, order or directions shall be reckoned as
follows: Where an act is to be done;
a. Within a specified period after or from a specified date – the period
begins to run immediately after that date.
b. Within a specified period before a specified date – ends immediately
before that date.
c. Not later than a specified date – ends immediately before the end of the
specified date.
d. A specified number of clear days before or after a specified date – at
least that number of days shall intervene.
• Where time fixed is seven days or less, it shall exclude Saturdays,
Sundays or Public Holidays.
NON-WORKING DAYS
An act prescribed to be done on a non-working day shall be considered done
in time if done on the next working day following. The court may extend or
reduce time prescribed by the rules.
DEFINITION OF MONTH
Month unless the context otherwise requires means a calendar month. (See
Order 6 of CI 59)
REFERENCES
The Supreme Court Practice (1993), Vol. 1 part 1, edited by Sweet & Maxwell
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